5.0 Safety, Health and Welfare at Work

Note : This chapter of the Guide is only intended as a guide to better understanding of your policy and of the actions that you must take in various situations. You must refer to your Policy wording and Schedule for precise details of your cover and all terms, conditions, limitations and exclusions applicable to it..

Introduction:

As we have said in Chapter 4 - Safety in the School, the most important of the Statutory obligations for the Board is the Safety, Health & Welfare at Work Act 2005 (The 2005 Act).

Education has similar health and safety concerns to other sectors and health and safety must be managed within schools.

Remember that:

(a) Boards must prepare a safety statement,

(b) both management and staff have responsibilities under the legislation,

(c) co-operation is essential to create a safety culture in schools,

(d) staff and students have a right to be safe in schools,

(e) staff and management must never be complacent about the need for good health and safety practice,

(f) there is a need to educate and train staff to understand and manage risks.

2005 Act

The 2005 Act came into force on September 1st 2005. While the basic principles of health and safety law remain unchanged following its implementation, the 2005 Act has streamlined Health & Safety legislation and includes many new and more detailed and stringent provisions than the 1989 Act, which it replaces. The 2005 Act also has:

(a) expanded duties for employers and employees,

(b) new statutory definition of “reasonably practicable”,

(c) a greater emphasis on safety management,

(d) increased exposure to personal liability,

(e) increased fines and introduced new ‘on the spot’ fines,

(f) a regime of criminal capability and possible civil claims for damages.

In carrying out the duties imposed under The 2005 Act, the Board is required to do what is “reasonably practicable”. The 2005 Act for the first time in Irish Health and Safety Law defines exactly what is meant by the phrase “so far as is reasonably practicable”.

Section 2(6) states that “reasonably practicable” means:

“that an employer has exercised all due care by putting in place the necessary protective andpreventive measures, having identified the hazards and assessed the risks to safety andhealth likely to result in accidents or injury to health at the place of work concerned and wherethe putting in place of any further measures is grossly disproportionate having regard to theunusual, unforeseeable and exceptional nature of any circumstance of occurrence that mayresult in an accident at work or injury to health at that place of work”.

How does the Board meet these requirements?

A Board will have discharged their duties under the Act if they:

(a) have identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned,

(b) have put in place the necessary protective and preventive measures,

(c) can demonstrate that putting in place any further measures would be grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.

In determining if a precaution is “reasonably practicable” the courts will take into account the risk involved in carrying out a particular hazard and the cost involved in remedying it.

The process is essentially a balancing act. The risk is placed on one side of the scales and the measures required to prevent it, (money, time or trouble) are put on the other side. If it is shown that the risk is insignificant when compared to the steps that must be taken to prevent it - then the courts are likely to hold that the test of reasonably practicable has been satisfied.

What are the duties of the Board?

The 2005 Act identifies a number of duties and matters which an Employer (ie the Board) must consider.

Section 8 provides that the Board must:

(a) manage and conduct work to ensure the safety, health and welfare at work of all their Employees,

(j) provide employees the necessary information, instruction, training and supervision to ensure their safety and health at work,

(k) following the risk assessment required under Section 19 and the preparation of the safety statement under Section 20, the employer must decide on and implement any safety, health and welfare measures which are necessary,

(l) where risks cannot be eliminated provide and maintain protective clothing and equipment as appropriate and have emergency plans in place. The primary emphasis is on attempting to control or eliminate hazards. The provision of protective equipment is only to be regarded as a secondary response by the Employer.

The requirement that the equipment be maintained means that the Employer must have a follow up mechanism to ensure that the equipment provided is actually worn and continues to be up to standard,

(m) prepare adequate plans to be followed in emergencies,

Additionally Employers:

(n) may be required by regulations to report to the Health and Safety Authority (or to any other

body given functions under Section 33) accidents to Employees and dangerous occurrences,

(o) Employers must retain, where necessary, the services of a competent person to help them

meet their safety and health obligations.

Who is “a competent person”?

A competent person is defined as “somebody who has sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken.”

What information is the Board required to give to Employees?

In Section 9 the 2005 Act sets out the types of information on safety, health and welfare required to be given by Employers to Employees. The information must:

(a) be in a form, manner and language that is reasonably likely to be understood. This is particularly important when dealing with non nationals,

(b) include information on hazards, risks and measures taken as regards safety, health and welfare and the names of emergency staff and safety representatives.

An Employer must give fixed-term and temporary Employees information on:

(a) any potential risk,

(b) health surveillance,

(c) any skills required for the job.

In addition, an Employer who hires an Employee through a temporary employment business, must inform them about the skills required for the job and its specific features and ensure the information is passed on to the Employees. The temporary employment business is obliged to give the same information to Employees.

Are there any requirements in relation to training?

Employers must give instruction and training to Employees (Section 10). Training must be provided to Employees:

(a) on recruitment,

(b) in the event of the transfer of an Employee or change of task assigned to an Employee,

(c) on the introduction of new work equipment, systems of work or changes in existing work equipment or systems of work,

(d) on the introduction of new technology.

Employers are obliged to instruct Employees of another Employer carrying out work in their places of work of any risks. Fixed-term and temporary Employees must be given appropriate training, taking account of their qualifications and experience.

The 2005 Act outlines the type of training that should be provided:

(a) instruction and training must be given in a form, manner and language that can be understood (particularly by those who do not use English as their first language),

(b) such training must include information and instructions in the job to be carried out,

(c) training must also include information and instructions on any emergency measures that need to be taken,

(d) training must be adapted to changed circumstances or new risks and be repeated periodically,

(e) training must be provided free of charge to Employees and, if required, Employees must be released from work for training and without loss of pay.

Are there requirements in relation to emergencies?

The 2005 Act sets out in great detail (Section 11) the measures to be taken in emergencies.

Emergency plans and procedures must set out the procedures to be followed when:

(a) applying first aid,

(b) fire-fighting,

(c) evacuating Employees and others present in the work place, where there is an emergency or serious and imminent danger.

An Employer must:

(a) establish appropriate contacts with the emergency services,

(b) ensure a sufficient number of Employees have been properly trained in applying first aid, fire fighting and evacuation of fellow Employees,

(c) provide Employees with the necessary equipment,

(d) inform Employees of the risk and the protective measures to be taken in cases of emergency and imminent danger,

(e) put procedures in place to inform Employees when there is an emergency or serious and imminent danger,

(f) have in place agreed procedures for deciding when an Employee is entitled to stop work where there is an emergency or serious and imminent danger.

What legal implications are there in the 2005 Act for directors / senior managers?

Legislation recognises that individuals are protected under a “company” structure, but directors and senior managers can now face prosecution (Section 80 of the 2005 Act) for breaches of the Health and Safety code. It is also possible under the 2005 Act for someone injured on a workplace to take a civil action against an Employer for breach of statutory duty.

A director or senior manager is defined as a figure within an “undertaking” who has a defining role and input into Health and Safety policies and implementation of same within that company. The Act also defines an “undertaking” as a person, being an individual, a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or the provision of a service – this would also indicate that Section 80 applies to both the public and private sector and also profit and non – profit organisations (which would include Schools).

Section 80 provides that : “when an offence, under health and safety legislation is committed by an undertaking and the acts involved were authorised or consented to, or were attributable to connivance or neglect on the part of a director, manager or similar officer in the undertaking or a person purporting to act in any such capacity, that person as well as the undertaking will be guilty of an offence and liable to be proceeded against and punished as if the person was guilty of the offence committed by the undertaking”.

Under what circumstances could a director or senior manager be prosecuted?

For a director or senior manager to be prosecuted or convicted it must first be proven that they:

(a) authorised the offence,

(b) consented to the offence,

(c) the offence was as a result of the directors / managers connivance or neglect.

Section 80 of the 2005 Act therefore applies to directors or managers who have had an input into corporate policy, that is, those who have executive functions in the organisation. Basically, if a person has no real responsibility of the matter in question they cannot be prosecuted – it must be proven that a person is a director or senior manager; it must be proven that they consented to certain procedures or policies and that they were attributable to the act.

What duties does an Employee have?

The duties of an Employee (Section 13 of the 2005

Act) are:

(a) to comply with relevant Safety Law, both in the 2005 Act and elsewhere,

(b) to take reasonable care to protect their safety and that of others affected by their acts or omissions,

(c) not to be under the influence of alcohol or drugs to the extent that they are likely to endanger their safety or that of others,

(d) if reasonably required, to submit to appropriate tests for intoxicants under the supervision of a competent registered medical practitioner, (yet to be introduced)

(e) to co-operate with their employer to help in complying with safety legislation,

(f) not to engage in improper conduct or behaviour that is likely to endanger safety or health. Violence, horseplay or bullying would come into this section,

(g) to attend appropriate training and instruction given by their employer,

(h) correctly use any article, substance, protective clothing and equipment provided for use at

work (by their employer) to protect their safety or health,

(i) not to misrepresent their level of training, upon entering into an employment contract,

(j) to report to their supervisor, or other appropriate person:

(i) work being carried out in a manner, which may endanger health or safety

(ii) contraventions of the statutory provisions, which may endanger health or safety,

(iii) defects in the place, system or equipment at work, which may endanger Health or Safety.

What are the consequences?

Workers are prohibited (Section 14) from recklessly interfering with or misusing anything provided under law for securing health and safety, or place at risk the safety of people in connection with work activities. It is worth noting that this applies to persons and not just persons at work. As a result this Section could apply to pupils if they behaved recklessly in a laboratory, construction studies room or technology room for example or where pupils misuse Personal Protective Equipment (PPE) or remove / damage safety equipment such as fire extinguishers. Breaches of an employee’s statutory duty may also lead to them having:

(a) a criminal record,

(b) trouble obtaining travel visas,

(c) inability to serve on State bodies.

What penalties apply under the Act?

Section 77 states that a person having duties under the 2005 Act, is guilty of an offence if another person suffers a personal injury as a consequence of them breaching their statutory duties. This section sets out the full range of offences applicable under the Act.

Section 78 provides for a fine under summary jurisdiction not exceeding €3,000 for a person guilty of an offence (Employers and Employees) under the first category of offences set out in Section 77(1).

A person found guilty of any other offence set out in Section 77 is liable, on summary conviction (in the District Court) to a fine not exceeding €3,000 and/or up to 6 months imprisonment. Charges brought on indictment (in the Circuit Court) may lead to a fine not exceeding €3 million and/or 2 years imprisonment.

Are Employees protected against penalisation?

An Employer may not penalise or threaten penalisation against an Employee (Section 27) for:

(a) complying with legislation,

(b) performing duties (such as safety rep or safety committee),

(c) refusing to work in a situation of serious and imminent danger.

The term Penalisation includes suspension, demotion, transfer of duties, or change in working hours.

What about safety representation and consultation?

Employees should be consulted as they are most in contact with potential safety and health hazards and have a vested interest in effective protection programmes. In addition staff are more likely to support and use programmes in which they have input and research has also shown that staff who are encouraged to offer their ideas and whose contributions are taken seriously are more satisfied and productive on the job.

Staff are entitled to select and appoint a safety representative (Section 25 of 2005 Act).

A safety representative can:

(a) investigate accidents and dangerous occurrences,

(b) investigate complaints relating to safety health and welfare,

(c) accompany a HSA inspector carrying out an inspection,

(d) obtain as a right information from the employer in connection with the safety, health and welfare of Employees,

(e) make representations to the Employer on any matter, relating to safety health and welfare at work.

Does the Act protect safety representatives against penalisation when carrying out their duties?

Safety representatives are protected against penalisation for carrying out their duties. Furthermore they are not responsible for safety standards in the workplace in their role as a safety representative.

Are Employers obliged to consult Employees in relation to safety, health & welfare at work?

Under Section 26 of the 2005 Act an Employer must consult Employees on any matter which substantially affects safety including:

(a) the designation of Employees in respect of emergencies and serious and imminent dangers,

(b) hazard identification and risk assessment,

(c) the preparation of safety statements,

(d) the appointment of competent persons,

(e) the planning and organisation of the training,

(f) planning and introduction of new technologies.

What about Risk Assessment?

All schools must carry out risk assessments for every activity that occurs on their premises. Risk assessment (Section 19 of 2005 Act) is the careful examination of sources of harm in the workplace so that Employers can determine how to avoid such harm or that the effects of the hazard can be minimised. These must be included in the Safety Statement (see Safety Statement later in this Chapter).

Risk assessment involves gathering information and making judgements based on that information. The purpose of a risk assessment is the identification of hazards and risks and the preparation of measures to overcome these before an accident occurs.

In most cases it is not necessary to employ a consultant to carry out a risk assessment. Risk assessment is a straightforward process that most people can do, given a little time and effort. You will need help if you have particularly hazardous processes or risks (i.e. asbestos, noise) but generally risk assessments are best carried out by staff.

Have you any suggestions?

Basically keep a sense of proportion – avoid “going over the top”. Additionally:

(a) be systematic – take a step-by-step approach so as not to forget anything,

(b) when carrying out risk assessments within any building start either at the front door and work your way through to the back, or start at the back and work your way to the front door,

(d) apply common sense about what really is a hazard and how likely it is to cause harm.

What is meant by terms such as Hazard, Risk and so on?

“Terminology” can cause some difficulty when carrying out risk assessment. The following should

be of assistance:

1. Hazard

A hazard is anything that could cause you harm. When the safety audit identifies hazards it is necessary to evaluate and rank them so that they can be controlled in an orderly way.

2. Risk

A risk is the chance great or small that someone will be harmed by the hazard. The risk of a hazard is a measure of the likelihood or probability of an accident coupled with the severity of the injury or loss. Risk can be measured numerically (using the formula: severity x probability = risk rating) or by using simple terms to describe the level of risk such as low, medium or high.

3. Risk Management

Risk management is a process that involves assessing the risks that arise in a workplace, putting sensible health and safety measures in place to control them and making sure they work in practice.

4. Control Measure

A control measure is an applied measure that reduces the level of risk. Control measures can:

(a) be applied at the planning stage,

(b) comprise physical measures,

(c) be management issues,

(d) include training.

Good control measures will require a combination of some or all of these.

5. Control measure principles

(General Principles of Prevention as set out in Schedule 3 of the 2005 Act)

(a) avoidance of risk,

(b) evaluation of unavoidable risks (risk assessment),

(c) combating risks at source,

(d) adaptation of work to the individual especially with regard to design of places of work, the choice of work equipment and the choice of systems of work,

(e) adaptation of work to technical progress,

(f) the replacement of dangerous articles, substances or systems of work by safe or less dangerous articles, substances or systems of work,

(h) development of an adequate prevention policy which takes account of technology, organisation of work, working conditions, social factors and the influence of factors relating to the working

environment,

(i) giving of appropriate training and instructions to Employees.

How do we carry out a risk assessment?

There are a number of steps which you can take in this regard:

1: Analyse Work Activities

Decide who might be harmed and how. For each hazard be clear about who might be harmed as it helps identify the best way of managing the risk. That does not mean listing everyone by name, but rather identifying groups of people (e.g. ‘people working in the art room; office staff’).

In each case, identify how they might be harmed, i.e. what type of injury or ill health might occur. For example, ‘caretakers may suffer back injury from repeated lifting of boxes, machinery, paper etc’.

There are a number of issues that should be considered when carrying out a risk assessment.

These include:

(a) Is there a hazard at all?

(b) Is anybody exposed to the hazard?

(c) Is the hazard likely to cause an injury?

(d) How severe will the injury be?

(e) Is the hazard well controlled?

(f) Has effective training been provided?

(g) Is the level of supervision adequate?

(h) How did the hazard get there?

(i) How long are employees exposed to the hazard?

(j) Could the hazard have been designed or engineered out?

(k) How can the hazard be avoided in future?

2: Identify the Hazards

Work out how people could be harmed. When you work in a place every day it is easy to overlook some hazards, so the following tips will help to identify the ones that matter:

(a) walk around the workplace and look at what could reasonably be expected to cause harm,

(b) ask staff what they think. They may have noticed things that are not immediately obvious,

Few workplaces (including schools) stay the same. Sooner or later new equipment, substances

and procedures will be brought into a school and these could lead to new hazards. It makes sense therefore to review what is happening on an ongoing basis. It is all too easy to forget about reviewing risk assessments – until something has gone wrong and it is too late.

A simple strategy is to set a review date for risk assessments in the Safety Statement.

Are we required to prepare a Safety Statement?

It is a legal requirement for every Employer to prepare a Safety Statement (Section 20 of 2005 Act) and failure to have a Safety Statement is a criminal offence. However, Employers with 3 or less employees (a small Employer) do not necessarily need a safety statement. Section 20(8) gives the HSA the power to issue a code of practice and provided a small Employer complies with this he will be held to have complied with his obligations under the 2005 Act in this regard.

What should a Safety Statement contain?

A Safety Statement will not prevent accidents but in drawing it up there is a commitment to the concept of safety by both the Employer and the Employees. It is a public record of what the Board intends to do to provide a safe working environment for staff, students and visitors.

ASafety Statement:

(a) reflects Boards commitment to ensuring safety, health and welfare of all Employees,

(b) is an action document – based on risk assessments identified in the workplace,

(c) is a written document which every workplace must have – in a language that is understood by all Employees,

(d) includes Health and Safety policy of the Employer,

(e) highlights all potential hazards in the workplace,

(f) specifies what must be done – plan of action that sets down preventative and protective measures taken,

(g) specifies the arrangements made for safeguarding the Safety, Health and Welfare of Employees,

(h) specifies the resources provided for safeguarding the Safety, Health and Welfare of Employees,

(i) outlines the measures that have been put in place to reduce hazards in the workplace,

(j) contains the arrangements for consultation with staff on matters of Safety, Health and Welfare,

(k) outlines emergency plans and procedures,

(l) must be brought to the attention of all Employees,

(m) includes what procedures are in place for visitors (sign in etc.),

(n) includes the names, job titles and details of anybody with assigned safety responsibilities,

(o) should be reviewed annually and must be revised if any significant change happens in the working environment or nature of the work

(p) includes audits to ensure Employee compliance and effectiveness of procedures.

By following the measures set out earlier in this chapter under Risk Assessment and Hazard

Identification you will have addressed the core issues which should be included in your Safety

Statement. The issues identified should be documented in a structured format to ensure